Electronic Surveillance VS. Employee Privacy Issues: The Ramifications of Monitoring Employees in a Digital World

TASA ID: 321

Note: This webinar was approved for CLE credit in CA, NJ, PA and IL.

Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.

On April 20, 2022, at 3:00 p.m. (ET), The TASA Group, in conjunction with law enforcement and safety expert Timothy Dimoff, presented a one-hour interactive webinar presentation, Electronic Surveillance vs. Employee Privacy Issues: The Ramifications of Monitoring Employees in a Digital World, for all legal professionals.

With the advent of social media and new digital surveillance methods, it’s a brand new world in terms of what you can and cannot do to monitor or investigate an employee. This presentation addressed the following:

• Learn about the types of surveillance available and the pros and cons for each
• Discuss the ramifications on employee privacy in the digital age
• Employees rights regarding their email and social media
• The best and legal practices for conducting an investigation into an employee situation
• State privacy laws and monitoring employee activity
• Understanding various and emerging types of electronic surveillance including:
  • CCTV
  • Legal wiretapping
  • Cameras
  • Digital video equipment
  • Access control embedded microchips
  • Heat sensors under workstations
  • Advanced listening devices used on the sales floor
  • GPS fleet tracking devices
  • Monitoring software on company issued computers
  • Understanding the downside to these invasive monitoring solutions - “big brother is watching”
• Pros and Cons of potentially privacy-compromising electronic surveillance solutions

About the Expert:

Timothy A. Dimoff, founder and president of SACS Consulting & Investigative Services, Inc., is considered one of the nation’s leading authorities in high-risk workplace and human resource issues, security, vulnerability assessments and crime. As a consultant to law enforcement and the media, Timothy has been called upon to examine evidence from crime scenes and victim and witness reports to develop an offender profile. He has testified as an expert witness in many trials throughout the years.

Transcription: 

Moderator: Good afternoon, and welcome to today's presentation, Electronic Surveillance VS. Employee Privacy Issues: The Ramifications of Monitoring Employees in a Digital World. The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes and should not be used in a court of law, sans the expert's consent, i.e., a business relationship where she or he is hired for your particular case.

In today's webinar, Tim will discuss the types of surveillance available, and the pros and cons for each, ramifications on employee privacy in the digital age, employees' rights regarding their email and social media, the best and legal practices for conducting an investigation into an employee situation, state privacy laws and monitoring employee activity, understanding various and emerging types of electronic surveillance, pros and cons of potentially privacy-compromising electronic surveillance solutions.

To learn a little bit about our presenter, Timothy A. Dimoff, the founder and president of SACS Consulting & Investigative Services, Inc., is considered one of the nation's leading authorities in high-risk workplace and human resource issues, security, vulnerability assessments, and crime. As a consultant to law enforcement and the media, Timothy has been called upon to examine evidence from crime scenes and victim and witness reports to develop an offender profile. He has testified as an expert witness in many trials throughout the years.

Attendees who require a passcode, the word for today is digital. During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A widget is located to the left of your screen. Please remember that if you are applying for CLE credit, you must log onto your computer as yourself and stay for the full 60 minutes. You are also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer.

Just note that tomorrow morning I will be sending out an email with a link to the archive recording of the webinar. The slides can be downloaded from the resource list at the widget at the bottom of your screen. If by any chance you have any questions during the presentation, feel free to type them into the Q&A box. Tim, the presentation is now turned over to you.

Tim: Thank you very much. And good morning and good afternoon, depending on where you are. Appreciate it. As she's explained my background, and I just wanna say that now for over 20 years, I've been testifying as a national expert in security, law enforcement, and HR issues such as this, which is a combination between security and human resource issues. This is a growing topic of discussion and debate. This is a significant question that's coming up in court more and more.

I'm being asked to testify and to give opinion on a lot of different parts and pieces that we'll be talking about today. I encourage you to ask questions, type them in, and I'd like to address those questions as they come up best we can. Also, there'll be time at the end for you to be able to ask questions. So, let's get right into it here and let's go from there. Basically, there's a lot of debate between surveillance issues, what you can and cannot do, practices that the businesses can do, and we'll really dive into that today and hopefully address your issues.

So, e-surveillance, basically, what is it? It's gathering information by an electronic, mechanical, or other surveillance device for any content of communication, basically without the consent of either party, but might be legally permissible under some state and federal guidelines. Remember, e-surveillance doesn't always mean a camera. It can be just an electronic surveillance. So, don't think it just comes down to taking pictures or photos. It's any form of electronic surveillance.

Now, there's no secret. Productivity is always our primary concern for employers. And many employers feel that their employees bring too much of their personal lives into the workplace. And we realize that that is a problem with the internet, with cameras, with the accessibility and the easiness of it. We really are seeing many employees bringing too much of their personal lives to workplace. Our grandparents lived in an era where they brought nothing rarely to work.

Personally, they were told to leave it at home. It was a clear-cut kind of culture that doesn't exist today. And now we're seeing, of course, the opposite end of the spectrum, and we have to deal with it and find out what we can do and cannot do. First thing is, your employees should have no expectation of privacy in connection with the data stored in devices owned by the employer. What you're gonna see here is in all of this information, if that equipment belongs to the company or the company pays for it and allows the employee to utilize it as part of their job, bottom line is that's where the privacy really stops and the company has a right to monitor anything and everything connected to that device. We'll get into that.

But right now, 80% of the companies openly admit to monitoring employees' emails, internet, and phone records, and obviously, the majority of that is taking place at work or with a work device. So, what of our new challenges that we're dealing with? Employees are coming forward with entitlement demands. The 3.0 hours a day is a representation of, ironically, the amount of hours per day at work that the average employee spends on their phones or computers checking out personal items, looking to go shopping, visiting pornography sites, sending photos, checking social media sites.

The amount of hours per day the average person spends on social media and the internet, including on and off is a significantly high number of hours. If you think about all the different social media sites that we have, that we try to upkeep on, that we try to get updates from other friends and family, three hours a day is spent at work gathering personal information on the internet. Thirty-five percent of people say the internet is what diverts their focus away from work. Talked to many employees in many surveys, they say definitely it's obviously tempting, it's easy to do, and it's right there in their lap with their phones or with their computers.

Sixty-five percent of people say they constantly are considerably seeing people using the company's internet inappropriately. So, we know that that's going on also. And the reason this statistic is here and it's high gives us an indication that we also, we get complaints from employees that don't abuse going on the internet using their phones very much during the day, and they feel that it's not fair that they're working while others spend hours on the phone not working and getting paid the same as them. So, there's two sides to this coin.

Email. 24% of employers have battled workplace lawsuits triggered by both employee management email. I will tell you that this percentage of lawsuits, 24%, has gone up and it's gonna continue to go up. And the reason being is law firms today, obviously, some of the first things they do in these lawsuits is they're gonna subpoena the emails from the company. The problem with that is that you as an attorney, we tend to say, "Here's a subpoena, I want every email ever sent." And this has become a side issue.

And the side issue is that as attorneys, you really need to narrow down the emails that you want. I was just involved in a major lawsuit with a nursing home, and the police department was investigating whether the nursing home had responded to electronic maintenance request by employees. And what had happened is they had a resident get outside the nursing home and wasn't able to get back in in the middle of winter, and subsequently died outside, froze to death, and it became obviously a major lawsuit.

But when the police department got involved in the investigation, they put a massive subpoena together or a request for all these emails. And it would've took the nursing home and the provider months to produce and be able to filter out. It wasn't something simple. I helped them narrow down the request without triggering any kind of problem by either side and explain to them, you just can't issue a blank request. And realistically, they were able to narrow it down to emails from specific employees that were working at that facility, and they narrowed down the timeframe. Instead of asking for a couple years, it was narrowed down to last six months.

So, this is an argument, and this is a debate that we have to be careful of, is that we don't get too out of hand because some of this stuff presents other problems. So, there is an increase expected with the return to work on the horizon, we're definitely seeing that happening. Now, 25% of employers have fired an employee over email usage or internet usage. So, that's not a surprising number.

Thirty-four percent of the employers have fired or reprimanded an employee over their social media post. And these statistics are talking about clear-cut cases where there's strong abuse on part of the employee on their email usage phones, the majority of just pornography. Let's take pornography. Statistically, the majority of pornography searches are done during working hours. A huge amount of shopping searches and purchases is done during working hours. So, this is happening.

It concerns the employer because they figure they're losing a couple hours of work per employee or many, or majority of their employees, and they quantify and multiply that into a pretty high number of loss potentiality. So, why should an employer use electronic surveillance in the workplace? We want to talk a little bit about that. So, now, new technology does make surveillance easier. A lot of companies are tracking all the app uses and clicks on a computer. So, they're monitoring that. They're monitoring web browsing activity. And these things a couple years ago even was a little more difficult to track and really separate and maintain.

Now, with the modern software, very easy to track on any computer, any phone where you've been, what you requested, what you got back, who you talked to, and be able to separate personal from professional. There's keystroke tracking, or they call it keystroke logging. And that can happen too, and obviously, you can get the entire conversation of what the request was for. And now they have clocks that can sense how long you're at the workstation, how long you're not at the workstation, when you get up, when you come back. They have sensors that can give you right down to the minute.

So, what are some positive impacts? Well, obviously, monitoring of internet usage for appropriate work protocols. You let your employees know they're being monitored, and that it's part of their work performance evaluation, and just the fact that you are monitoring reduces significantly employees from abusing their time at work. Companies will quantify hours lost on the internet, apps, shopping, pornography, etc., communicating with family and friends, sending photos. They can equate that into X amount of hours per day, X amount of employees times their wages, and those numbers get to be pretty significant.

So, obviously, another positive is you know when there's inappropriate location issues. And the other thing is, there's still a lot of workplace harassment, bullying, violence, sexual harassment, intimidation going on. And that can be detected and it also can be utilized for criminal cases, or civil cases, lawsuits, etc. And then obviously, companies can produce email and web records so that we know what's going on, and are they going to proper websites and communicating with other customers and clients, or are they out on the internet shopping or something else?

Negative impacts. It absolutely affects the relationship between the employer and the employee. And as I said before, I believe that what you need to do is, I believe you have an open discussion. And I did use the word discussion. Don't just bring your employees into a room, and bring them in and explain some of this information that I'm showing you, that there's lots of hours, multiple hours per employee across the country, and that all those hours add up to profits and losses for the company, which affects everybody's paycheck.

And also, you got to talk about, hey, we have a lot of employees that don't abuse their work hours by, you know, going to different sites and spending hours each day. And it's not fair to the hard-working employees that the non-hard-working employees who are taking a couple hours a day, you know, and that it's not an even playing field. So, I believe you got to have a discussion and I would have smaller groups of employees and have these discussions, and I'd flat out ask them, "What do you think?" And get them to acknowledge that, yeah, spending two, three hours a day, you know, is not proper.

You know, now somebody checks their phone a couple times a day for five minutes because they're checking in with a family member who may be sick or went to the doctor, that's different. And companies are not talking about that. They're talking about the abuse. And when I say abuse, we're talking about ongoing multiple hours in a day on a regular basis at work. You know, the work culture's got to foster trust. That's why I say issue your guidelines, put it in writing, have a meeting, have a discussion, and encourage debate and feedback. And a lot of companies have done that, and they've come up with some, you know, very unique situations.

I know of one company that said, "Yeah, I know you need to check in." So, what they did is they created an ability that on the lunch hour, lunch half hour, whatever it is, that their employees could use their computers to check personal, they could get on their phones to do it. I've even had companies that give breaks during the morning or afternoon. We used to have these cigarette breaks, smoke breaks. Now they're giving breaks. And on those breaks, if you wanna check your social media or you wanna check in with someone, or send a photo, fine. And they're giving breaks where you can, maybe there's still people, obviously, that smoke cigarettes on brakes, want to get on their phone, want to buy something on the computer, through the computer. So, there's some creative stuff that can happen and you can garden a lot more positive culture.

And, of course, employee privacy is a big issue. And during these discussions, explain to the employees, we want you to know you're being monitored. So, do not expect employee privacy. I can't tell you how many different situations we had where the employee said, "I thought I had my privacy. You know, it was against my privacy rights, you know, I didn't know." One would think that you're at work using a company product that you would assume you don't have privacy. But unless you tell 'em, amazingly some of 'em expect that privacy.

Don't forget, you got any questions, please post them and we'll be glad to, you know, start answering some of those. So...

Moderator: Tim, I'm sorry, I did drop three questions in the chat for you.

Tim: Okay. I don't have 'em here. Let's see.

Moderator: Can I tell you what one of the questions is?

Tim: Go ahead.

Moderator: Okay. So, someone was asking, what does it mean when you said triggered by email? It was slide 16.

Tim: Triggered by emails?

Moderator: Yes.

Tim: Yeah. What was that? I don't remember the state... Oh, wait a minute, here it is.

Moderator: It was slide 16 and you were talking about emails. It was right after you talked about today's new challenges, and then you went into email.

Tim: Well, I don't remember the total slide, but I believe I was talking about that at times different things can happen and it can be triggered by an email. So, let's say a workplace bully or someone harassing someone and they send the email and that instance could be triggered by an email, meaning started by that email, causing that negative encounter. So, I believe that's what I was referring to without having a slide in front of me.

You know, and another question came up. What other forms of electronic surveillance are there? I'll give you examples. Once again, I did have a slide on it. You can have, obviously, a camera, you can have keyloggers that track what you're typing, you can have sensors that tell us when you're sitting in front of the computer and when you get up and you're not there, and when you are there, how much time you are at your desk. Okay?

We have other electronic surveillance can tell you every location you go to on the internet, everything that you type in in relation to those visits to the internet. It can track the types of visits you make, such as to pornography or shopping, it can distinguish that, or are you going to other types of businesses and companies looking up information for the company. So, anything and everything that you do on a computer and company phones can be tracked, logged, and later deciphered and categorized, and a lot of times that's what happens.

Once they categorize it and track it, they can also put it into a time percentage, wow, Tim was shopping on this day and spent 1 hour and 15 minutes on shopping sites. So, it can bring it all the way down to a very succinct summary. Okay. Let's talk about legal issues. Some laws may vary by state, and I will tell you, in each state, you really do need to check and see which state you're in. And the privacy rights, it does vary a little bit in different states, so make sure, you know, you understand that difference.

Just like all this COVID we went through, different states, as you could see, they had different rules about masks and where you're wearing 'em, and, you know, going to work and, you know, working from home and different types of environments they were mandated to have 'em, and the shutdowns. And all these different states had a variety of different laws related to COVID. And I think COVID showed us how much variance there could be in different states. So, it's the same thing with e-surveillance or these electronic laws or guidelines.

So, the Fourth Amendment. You hear a lot of employees say, "What about my Fourth Amendment rights?" Protects citizens' privacy rights for situations, and there's a legitimate expectation of privacy. So, the Fourth Amendment is a big factor that we hear about all the time and it's gonna continue to be brought up. So, bugging a phone. Once again, if you talk about different states, I'm in Ohio.

Ohio only requires that one person has to know about when a phone conversation or a personal conversation. If I'm standing there with somebody and I wanna record my conversation with them with a tape recorder in my pocket or have my phone on, in Ohio, only one person that's involved in the conversation has to know that the recording's happening. So, if I'm talking to you in Ohio and I know I'm recording, I don't have to tell you that I'm recording. Now, there's other states that it's mandated that both parties, or all parties when it's being recorded, have to be advised and notified and aware of it, and the word is aware, where all parties have to be aware of the phone or personal conversation taking place.

So, once again, Ohio only requires one person to be aware of it. If I was talking to four other people, I could record our entire conversation without telling anybody else except myself. And other states are different, and all 50 states have different, so make sure you understand that. More leeway in public places than in private. That's very true. There is a big difference between standing out in a sidewalk, standing out in the middle of a shopping center, a plaza, than when you're in your home or in a private place. So, there's a big difference. There's much more leeway.

And if you look at especially cameras in this situation, you'll see cameras up and down streets, outside buildings, stores, inside stores, those are all public places, and there's very little restriction on cameras in there compared to putting a camera in a private place. Is it legal to monitor employees in the U.S.? Yeah, I would say that's a big yes, for the most part, obviously, each state has a little variance. But employers, basically, in the business world have a considerable amount of rights to monitor employees in their businesses. You know, and, of course, it must be backed by valid business reasons.

And there are some states that require consent. Once again, there's exceptions such as putting cameras in bathrooms. It's not acceptable to put up a camera in a bathroom in any business, in any state. So, bathrooms, showers, and that type of thing are all, you know, not have the ability to put cameras in. Outside the bathrooms in the businesses, that's where the debate is, and that's where a lot of cameras are, and a lot of times those cameras can be seen or laws in certain states say they must be seen, or you must have signage that says, you enter this premise, you will and are under electronic surveillance.

So, once again, there are some additional laws that state you must notify people before they walk in, or as they walk in a business or location that they're under electronic surveillance. There are some states that don't require that. So, once again, know your local laws. Now, this includes stored documents, files, downloads, internet usage, monitoring activity, idle time. Once again, it all comes down to who owns the device? Does the company own it, or is that a personal device? Is it being used for work or not for work?

And I would tell you, that's the real big division of where you're going to get and be allowed legally to utilize e-surveillance. But if you have a device that is issued by the company or belongs to the company, or the company pays for it, it becomes all the information in that device becomes the company's information. So, a lot of these cases come down to that, and the ability to monitor, download it, and examine it.

So, Electronic Communications Privacy Act, you know, simply says the computer belongs to the company, it's the systems at their work, you know. And what about laptops that go home? Once again, those laptops, they're bought by the company and many companies pay for 'em and issue 'em for one reason, it makes it very simple legally to distinguish that those laptops are company property and all usage and storage of information on it is company accessible.

So, you know, there are some companies that allow people to utilize company laptops for personal use, but those companies should put in writing to those employees that all use on that company laptop is subject to company ownership and the ability to inspect, store, and be notified of all activity on it. Technically, if it's a laptop or computer bought by the company, the employee should know and assume that it's a company-owned device and the company has 100% ownership of that and anything in it, you decide to use it for personal reasons, that's up to you, but that's the chance you take. But I've advised companies, put it in writing so it's clearly stated and have the employees sign off on it.

Moderator: So, Tim, I have a question.

Tim: Sure.

Moderator: What about the camera in the laptop? Can the employer use that as a surveillance tool if they notify the employee, can they use that as a surveillance?

Tim: That's an excellent question, and that's come up quite a bit. And once again, what they're saying is that if it's a company-issued computer with a camera on it, once again, automatically, that belongs to the company. So, everything that goes through and is recorded by that camera is absolutely company permission and company property, and the company can use it, you know, in any and all ways they want. But the big challenge gets into sometimes when the camera is recording stuff that's personal.

So, once again, the safe way to go here is the company needs to point out all uses of this laptop, including the camera, everything recorded, including on camera keystrokes, visitations, storage, all of it is company property and the company has full accessibility to it. And we keep coming back to the same thing in these legal cases when I get involved in testifying. If the company would notify everybody in writing and make it clear and have 'em sign off on it, I will tell you that the issue becomes very mute.

Where the dispute comes is assumed privacy by the employee and the company who's assuming that there is no privacy. And then you get the employee taking the computer or phone home and using it for personal use and they're saying, "I assume I walk out the door, from that point on, this is all, you know, my personal protection." And technically, it's not. But once again, if the company would just put it in writing, have the employee sign off to it, we wouldn't be into these debates and there would be a clear-cut understanding because courts want the companies to make sure also that they clearly explain it to the employees.

But the companies can strongly argue, it's our equipment, there should be no assumption of privacy. So, that debate just gets going. Once again, put it in writing, you don't have anything to worry about or shouldn't have anything to worry about. Is it legal to monitor internet and social media? Yup. Once again, if employees are using the internet for work-related purposes during paid hours, you know, they can monitor it. Where the big debate happens is where you have someone who's on their own phone on social media, and they start to talk about the company in a degrading way now on their phone, their 100% equipment, on their off time, and they're expressing their opinion.

And once again, they obviously have that right. But where the legal cases have come in and heads have clashed is if that employee is speaking negatively about an employee, manager, or the company. Does the company have the right to obviously know that that's going on? Which they do because it's usually a public statement. And do they have the right to take action against that employee? And in a lot of cases courts have ruled that, yeah, an employee who is expressing negative behavior or negative opinions or disparaging a person at that company, the company has the right to respond to that and monitor that and take action.

So, that's a huge debate. But we've seen a lot of cases where the companies have won out in it. They have not won out in it 100%, but we've seen quite a bit of success on the company side. Got a question here. Are you seeing party subpoena records of an employee's private phone that we use during employment? That's a hot potato there. And if it's a major lawsuit and there is a substantiated reason to subpoena the records of an employee's private phone, if there was something substantial going on, I mean, the police will get subpoenas for private phones because of criminal action.

Companies in order to subpoena records on an employee's private phone, it really has to be narrowed down to what specifically they're looking for and the reason behind it, and that the reason that they're subpoenaing it, it could be a strong determining factor in the outcome of the case. So, there are times when those records are being subpoenaed, but that subpoena has to have an awful strong backing of the reason why and what you expect to find, and it also has to narrow down the records that are going to be presented for that lawsuit. That's a very narrow, but it is potential, you know, to happen. See if there's any other questions here before I move on.

How does this all intersect with work from home? Does the law ever differentiate based on that? Working from home presented some nice challenges because they're working from home. But when they're working from home, the question is what are the hours that they're working, they're working from home. The fact that they're at the home doesn't matter. It's the fact that are they at home and are they working? What hours are they working?

Let's just say they work 8:00 to 4:00. It doesn't matter whether they're working from home, a restaurant, you know, a coffee shop, their car, it doesn't matter if their working hours are that designated hours, or they deviate and mix up their hours, but they're working six hours a day and two hours a night after the kids go to bed. Those are working hours. You know, that activity can be tracked once again, especially if they're using company devices.

So, if they're using company devices, it doesn't matter what time they're working. Those company devices can be legally monitored 24/7 because they're company devices, and that's the key. Most companies are issuing or paying for the electronics because then they have what they feel is 100% legal right to monitor everything. When it's not theirs, that's where it gets shaky. But the hours the person work doesn't matter and where they're working from doesn't matter. Once again, go back to that equipment and who owns it and who has the right.

Once again, companies have gotten smarter about it. It's worth it to them to spend the money to buy the equipment and give it to the employee. But once again, I wanna stress, have that employee sign off and understand what's going on there. That is the key. Social media, obviously, you know, can you hack into a private social media or email account? No. Companies, you know, trying to play a sleuth, you know, a hacker, you know, you have no ability or permissibility to hack in on an employee's private site, social media, whatever. If any information is needed in that private account, you're gonna have to have a police or prosecution subpoena for it, and you got to have a very strong good reason to do that, you know?

Okay. A question. If you have designated break times, what impact is there on an employee's privacy rights? Well, once again, you've got to establish that, you know, if you're gonna give breaks, make it clear that on breaks, whether you're on a break, whether you take the equipment home. And once again, I'll draw the line here. If you take a break with a company phone or laptop, and you go on a 20-minute break, a 10-minute break, and you go online, even though it's a break, if it's a company-owned equipment, they still have the right to monitor what you're doing. Okay?

Now, if they tell you on breaks, you can access the internet shop to communicate with mom and dad, send pictures, and on a break, you use their equipment and you send some photos or you communicate with someone in your family, then that's permissible. Okay? But they still have a right to monitor what you're doing with their equipment anytime, whether it's a break, lunch break, at home, at night, during the day in your car, they have a right to monitor.

But if they give you permission on breaks that you can go shopping, then you can go shopping with that equipment. And yeah, they might monitor it and they'll see what time you did it and find out you were on your break, and they'll go, good. They followed the guidelines. We encourage people to follow the guidelines. They don't have a problem allowing a person to do it as long as they do it on correct times. So, the company really needs to spell it out. Good question.

Moderator: Hey, Tim. Since you were talking about social media, what about...? Are there any unique challenges associated with the apps where your messages disappear after a short amount of time?

Tim: Yeah, that's a great question. I think we've had a couple of them on here, you know, about that. And more and more people are using the quick message or the messages that only stay active for 30 seconds or an hour or whatever. That's a challenge for police, it's a challenge for companies. And what happens with those is, in many cases, a couple things. If the company is able to monitor and while the monitoring's going on, as soon as they indicate, say, going to a shopping site, that link or that shopping link can be captured by the company and logged that you went there.

Now, let's just say 10 minutes later it disappears, you still captured that blueprint of that link, and the company will have a record that you went to that link. It may not have a record of everything that happened, but it would have a record of the link that happened. So, in those, a lot of people are utilizing 'em because they on purpose don't want that information to stay there long. But as far as tracking it, there's still some what we call quick tracking ability to capture where they went. And once it happens, if the software captures where you went, what you sent, what you did, it's like a blueprint and it takes it and stores it in a different file, and then the original that you sent is destroyed. That doesn't destroy the captured copycat of that.

Question here. Good afternoon and thank you. Maryland has an all-party, not two-party statute. Thank you for your care about the all-party distinction. Okay. Yeah, make sure you understand that it's either one party only needs to know, or all parties. And all parties could be two, three, four. It could be 10, it could be 50 people. Thank you Bruce Godfrey for bringing that up. That's an important thing. It ain't just two people, it could be multiple.

Can the employer track incognito searches? And well, what they can track is maybe the request on the incognito search, the person that's requesting it, they're using sort of an incognito type of app or process. But here's what the employer can track. They know what phone or computer that incognito came from. So, many times, it may not say Tim Dimoff sent it from SACS Consulting, but it might say it came from SACS Consulting. There's other types of apps that can make it very difficult that you can't even figure out or backtrack to where the source is. But if the employer has software on that computer or that phone, as soon as that person types in anything, they can get a copy of the keystrokes and the words used and they can backtrack it to where it came from.

It may be confusing, it may not give full identity, but they know at that time and place this computer or phone was used to send. So, there's still, even under incognito, there's still ways to get enough information to tell, you know, where it came from. In incognito searches, what the purpose of that is, or where that incognito ends up, that's the purpose of incognito. So, if you sent me an incognito message and you said you didn't like me and you're threatening me, I as a receiver, I can't tell nor discover or backtrack, say, with apps or services. I won't be able to backtrack where it came from.

But the company isn't the receiver of the message, they're the monitor of the activity. So, they see the activity happening, so they still know that you as an employee are sending stuff out. They may even know you sent an incognito thing out. They may even be able to tell you what that message was. But they're not the receiver, so they still have a record of it. Social media at work, at home, yeah, comments about workplace, political opinions, hate speech, of course, the National Labor will decide, you know, and they do many times oppose firing someone, especially if it's an opinion.

But the stronger the message creates problems such as hate and threats, criminal activity, you know, reputation damage to the company, the company has more than a strong right to be concerned and to take action against that employee. As I said, most social media monitoring firings do hold up more than those that don't. The ones that don't are the ones that are not on the threatening or reputation damaging. And it's more of an opinion such as, I'm not real happy about working here, blah, blah, blah. Yeah, okay, you're entitled to your opinion, but I'm not really happy about working here, and Tim Dimoff, you know, he should be shot, you know, I hope he gets in a car accident, he's a total wreck. Now, you're talking about reputation to a company management and that's significantly different.

So, here's some firing instances. Rude offensive comments, hey, releasing private company information, explicit inappropriate photos, showing that you lied about sick time, venting about company's leadership. I've had people go on social media and brag about how they tricked the company and got workers' comp fraud. During the COVID period, we did investigations on fraud COVID call-offs so that they could get paid for 14 days. We did extensive monitoring, investigations, surveillance. I hate to tell you, but in all of our investigations, 62% of our investigations brought up fraud on the COVID claims. So, it was significant. We expected it to be much lower, and it wasn't.

When you can't fire. If termination is based on the employee being part of protected category, obviously, if they're using social media for whistleblowing, big time. If they're whistleblowing, they can say all they want and you're not gonna get near 'em, they're protected under federal guidelines, you know. Yeah, monitoring screen, keystrokes content, anything they do is fair game, emails. Of course, once again, in some states, employers must inform once again. My rule is inform all employees of all guidelines and make it explicitly explained to them so that there's no surprises.

Because you don't want an employee to be able to come to court and say, "Well, if I would've known that, I wouldn't have done it." Not that that's a strong argument, but their argument's gonna be, "I didn't know I wasn't allowed to do that." And then they're gonna argue about how hard they work and they only do it X amount per day and how everybody else does it, and what happens is you got a mess.

So, cloud computing, stored communication prohibits the employers from looking at communications stored elsewhere. So, if your employee is storing their personal stuff elsewhere, you don't have a right to go in there and hack in or try to do something like that. You can look at how often an employee is getting into their private email from work, but you can't dig through those emails. Once again, you're monitoring and it's telling you they're going into their private email and they're spending time in their private email. It doesn't matter why they're in their private email, it only matters they're on company time doing private personal email work. So, once again, that is prohibitive and will hold up in court for the companies.

Phone conversations. We already talked about this. Yeah, it's against the law to intercept communication. And obviously, if you're business-related, you can record all business conversations. A lot of times you hear beeps or they tell you at the beginning, you know, prior consent, those type of things. And we pretty well covered about recording, you know. And is it legal to use video monitoring system? You got to have a legitimate purpose. There are some restrictions. And a lot of times it's best to notify or have signs up that you are under surveillance. It really cuts to the chase. Take pictures of the signs with the cameras so that you have a picture the day it was installed, you know.

Can you monitor private messages, email contact? And once again, we're talking about private versus public. But if the private email count that is password protected and monitored, you know, without the employee's consent, you're gonna have some problems. Once again, using the employer's equipment, network's a different ballgame, you know, and back to personal devices, you better have a company policy in place.

Once again, monitoring personal devices and computers. With this, bring your own device, you're gonna have to have a policy for that. You got to say, "If you're bringing your own device to work, if you're using your BYOD at home, we have the right to monitor it, you know, if you're utilizing it for work purposes." So, you're gonna have to lay it out. BYODs are problems because you really got to make sure you have detailed written and sign off. That's why I always advise companies, pay for the equipment, issue it to the individual employees, and let 'em know it's 100% can be monitored in all ways, shape, and form, expect zero privacy.

You know, court orders, you can get stuff, you know, and then, of course, Fourth Amendment prohibits unreasonable searches, so you have to be careful. Now, is monitoring policy mandatory or not? I think yes. You know, policies and code of conduct are mandatory for every business. Otherwise, you're gonna have employees who are misled, don't understand. And courts and labor unions protect them to a certain degree, especially the labor unions.

Be clear, defined, documented, outline how and what can be monitored, get the written acknowledgment signature, and make sure you explain there's no exception to the privacy, you know, and that there will be no gathering of data unrelated to work performance. And then set your restrictions on disclosure, personal data to third parties, which is another whole issue.

So, what a company cannot do. Privacy rule one, don't intrude into private areas, lockers, desks, dressing, no inquiries on sexual orientation. Don't disclose private facts about employees without their permission. Defamation, don't portray an individual in a false light. Don't use an employee's name or photo without consent. This is something that a lot of companies automatically think they can do and they can't. So, can you track an employer-owned vehicle without informing the employee? If it's an employer-owned vehicle, you can track it all day. Do you have to let 'em know? The answer is no.

Many companies do say all our vehicles have tracking devices, but bottom line, you can track your vehicles all you want without notifying anybody. And what about the surveillance policy? You know, I would reiterate it every year. You know, one-party consent depends on your state as we discussed. Look, there's gonna be embedded microchips, security codes, more sophisticated key fobs, you know, they're gonna have implanted chips in employees' arms or hands, and you can use it for everything.

What about heat sensors under workstations? These heat sensors track when a user is sitting at their desk or not, just picks up the body heat. So, let's create an environment in which employees don't abuse trust, develop a solid internet email policy, communicating, use lots of examples, train managers on how to establish and maintain policies. You got to build an environment which employees know there's trust, you've got to develop it.

So, the best solution to controlling the productivity of the team is not to restrict access to the internet, but rather to create guidelines for its proper use of when you can and cannot and how and what, and make it clear once again in your policy. Just spell it out and have 'em sign off. You wanna take away anything that goes under the word surprise. If the employee's shocked or surprised, you destroy their trust, the culture, you look bad even though you have 100% on company-issued equipment. And do it once a year and you'll have better culture environment, better productivity, and people, and for the most part, will comply. See if there's any more questions here.

Moderator: Yes, we do. We are a little overtime, but there was one question I definitely wanted to ask you, Tim.

Tim: Go ahead.

Moderator: So, say, when you're talking about recording conversations, say I'm having a conversation with you and Pennsylvania and you are in Ohio and I'm recording, how does that work? Which law applies?

Tim: Well, that's been debated also. And a lot of the answers we're seeing is the fact that, you know, who initiated the call? And if I initiate the call from Ohio to Pennsylvania, Pennsylvania says all parties must know. A lot of opinion out there, and this is still up for debate, but a lot of opinion is, well, I initiated... You know, I'm in Ohio, I initiated it, therefore I can record it. Now, if Pennsylvania initiated it, the debate is that Pennsylvania law would dictate. And that has not been totally settled. There's no set answer in that. But basically, I think for the most part is who's initiating the call, is the controller of the conversation, and therefore it falls to that person.

Moderator: Okay. Now, if everyone can type the passcode in. Thank you for your presentation, Tim. And this does conclude the presentation. And if everyone could complete the survey at the end. If it doesn't pop up, I can email it to you, just let me know. And that's about it. Thank you all for attending. And Tim, thank you so much for the presentation.

Tim: Thank you. And if anybody has any more questions being a participant under TASA, you can call me, email, or whatever, there's no cost, and I would be glad to follow up with questions as a thanks for participating with TASA today. Thank you, everyone.